Judge voids touch screen recount ban

However, without paper ballots at present, the ruling would not likely affect the upcoming primary elections.

By LUCY MORGAN
Published August 28, 2004

TALLAHASSEE - State elections officials should not have barred manual recounts for touch screen voting systems, a judge ruled Friday.

The decision came in a challenge by the American Civil Liberties Union of Florida, Common Cause and others who say Secretary of State Glenda Hood overstepped her authority when she abolished manual recounts for touch screen machines used in 15 Florida counties.

The ruling left state and county officials scratching their heads over their next move.

The ruling might pave the way for paper trails on touch screen machines, said ACLU Florida executive director Howard Simon.

But it is unlikely to have any impact on Tuesday's primaries, though it could affect the November general election.

"We all are of the mindset that there is nothing to recount," said Pasco County Elections Supervisor Kurt Browning.

If he has to print out all the data in Pasco's 1,500 touch screen machines, it would take working 24 hours a day to meet the seven-day time limit for completing a recount, Browning said.

The state might appeal.

"There are no problems with touch screen machines," said spokeswoman Alia Faraj. "They have been used in hundreds of elections since 2000 and were chosen by counties to avoid the problems we had in 2000."

In optical scan systems used in most Florida counties, voters mark paper ballots that are fed into a machine that transmits the votes to a central system. The paper ballots could be recounted in a close contest but touch screen machines do not use paper ballots.

Recounts are required by Florida law when the margin of victory is one half of 1 percent or less. When paper ballots are not used, state law requires elections officials to examine the counters on precinct tabulators to determine whether the totals are equal to the overall election return.

When the margin of victory is one-quarter of 1 percent or less, state law requires a manual recount.

Administrative Law Judge Susan B. Kirkland ruled the recount procedures Hood issued in February do not comply with state law.

Kirkland noted that lawmakers considered a bill this year to eliminate manual recounts on touch screen machines, but the bill died.

"If the Legislature had intended that no manual recounts be done in counties using voting systems which did not use paper ballots, it could have easily done so, it did not," Kirkland wrote in a 24-page decision.

Other states have done recounts on touch screen systems that survived court challenges, elections experts say.

"They ought to get together with us and work out an effective mechanism for making sure votes are counted and counted accurately," said Alma Gonzalez, lawyer for one of the plaintiffs, the American Federation of State County and Municipal Employees. "There is technology available today to be sure the manual recount law is complied with."

Gonzalez conceded it is too late to do anything about Tuesday's primary elections, but said the state could reach a solution for the Nov. 2 general election.